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Dispute Resolution > 10. Interim Applications > Flashcards

10. Interim Applications Flashcards

1
Q

What is an interim application?

A

Any application made to the court which requires a judicial decision

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2
Q

What is the risk when submitting an application which does not consider the aims of the overriding objective?

A

The court may make an adverse costs order

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3
Q

How soon should an interim application be made?

A

As soon as it is apparent that it is necessary or desirable

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4
Q

What is true of an interim application if there is already another hearing listed in the matter?

A

It should be raised at that hearing, if possible

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5
Q

Unless there is good reason why notice should not be required, what notice of an interim application must be given to parties (1) generally, and (2) if over the telephone?

A
  1. Three days
  2. Five days
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6
Q

What should be true of evidence relied on in support of an interim injunction?

A

It should be in writing and filed at court within the relevant time limit

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7
Q

For time limit purposes, when is the application treated as having been made?

A

On the date on which the application notice and fee are received by the court

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8
Q

What two things does the applicant have to file and serve on the court within 2 days of the hearing on the interim application?

A
  1. Case summary
  2. Proposed draft order
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9
Q

When might it be appropriate to not give notice of an interim application?

A

When giving notice may defeat the purpose of an application, or create an injustice

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10
Q

Other than what two types of orders would it be extremely unusual to not give notice of an interim application?

A
  1. Freezing injunction
  2. Search order
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11
Q

Where an interim application is made without notice, what must it include?

A

Evidence explaining why notice was not given

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12
Q

What three things must be served on the non-applicant party if an order is granted based on
a without-notice application?

A
  1. The order
  2. Application notice
  3. Supporting evidence
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13
Q

If an order is granted based on a without-notice application, within what time limit of being served must the non-applicant party apply to vary or set aside the order?

A

7 days

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14
Q

If a party makes an interim application without notice erroneously, what type of order will the court dismiss it with, and what is the effect of this?

A

A wasted costs order, which requires the solicitor to pay the other side’s costs to the extent they are associated with the application

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15
Q

What are the two criteria which the applicant must satisfy when applying for summary judgment?

A
  1. Other party has no reasonable prospect of success, and
  2. No other compelling reason why the case should proceed
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16
Q

What is the difference between default judgment and summary judgment?

A

Default judgment: Defendant has failed to acknowledge service or file a defence on time, not related to strength of case
Summary judgment: Other party has weak case and there’s no other reason to have the trial

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17
Q

What is the difference between an application to strike and summary judgment?

A

Application to strike: goes to procedure
Summary judgment: goes to merits

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18
Q

What are three things for which the court will grant an application to strike?

A
  1. Statement of case discloses no reasonable grounds for bringing/defending claim
  2. Statement of case is an abuse of court process
  3. Failure to comply with a rule, practice direction, or order
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19
Q

What one thing must the claimant do and what one thing must the defendant do before an application for summary judgment is available to the defendant?

A

Claimant must have served the Particulars of Claim and defendant must served acknowledgement or defence

I.e., the claim must be live before summary judgment is available.

20
Q

What is the defendant excused from doing if the claimant applies for summary judgment following the acknowledgement of the claim?

A

Defendant does not have to file a defence before the hearing on the application

21
Q

In an application for summary judgment, what are the three time periods before the hearing before which:

(1) Applicant must serve written evidence in support of the application on the other party
(2) Other party must serve evidence in response, and
(3) Applicant must serve any further evidence in response to (2)?

A
  1. 14 days
  2. 7 days
  3. 3 days
22
Q

What are the three conditions for an order of interim payment to be made?

A
  1. Defendant has admitted liability
  2. Claimant has obtained judgment but the sum to be paid is not yet assessed
  3. The court is satisfied that if the action proceeded to trial, the claimant would obtain judgment for a substantial sum (and in cases with multiple defendants, from at least one of them and each carries insurance)
23
Q

Before making an application for interim payment, what should the applicant do?

A

Request that the defendant make a payment voluntarily

24
Q

What must expire before claimant can apply for an interim payment?

A

The time in which the defendant has to respond to the claim

25
Q

In an application for interim payment, what three things must the claimant’s written evidence contain?

A
  1. Sum of money sought
  2. Items and matters in respect of which payment is sought
  3. An estimate of the final judgment
26
Q

In an application for interim payment in a personal injury context, what additional thing must be attached to the estimate of final judgment and what one additional thing is required in the claimant’s written evidence?

A

Estimate of final judgment must contain medical reports.

Additional element is a schedule of loss with details of past and future loss and damage.

27
Q

Does the claimant need to show a specific need for the money in order for an application for interim payment to be successful?

A

No

28
Q

Whilst the courts will not award an interim payment that is more than a reasonable proportion of the likely final judgment, what % amount has been held to be acceptable?

A

75%

29
Q

In considering an application for interim payment, will the court consider contributory negligence, set off, counterclaims?

A

Yes

30
Q

What is an injunction?

A

A court order that requires a party to do or stop doing something.

31
Q

When is an injunction considered interim, and when is it considered final?

A

Interim: if made before trial
Final: at trial

32
Q

If an interim injunction is granted based on a without-notice application, only when can a party be penalised for not following it?

A

After they have notice of the order

33
Q

What are the two types of injunctions, and what do they require?

A

Mandatory injunction requires someone to take action

Prohibitory injunction prevents someone from taking action

34
Q

In the context of an injunction application, what is an undertaking in damages?

A

An undertaking by the person making the application that they will compensate the other party for any loss suffered if the court later determines that the injunction should not have been granted

35
Q

How can a party apply to have the injunction discharged?

A

By applying on notice to a judge of the division where the claim is proceeding

36
Q

What are the three grounds that can be argued in support of an application to discharge an injunction?

A
  1. Applicant did not disclose all information when applying, or did not comply with its terms, or failed to prosecute claim with speed
  2. Relief is oppressive, or not justified
  3. Material change in circumstances
37
Q

What is a freezing injunction?

A

A type of prohibitory injunction designed to freeze the assets of the defendant

38
Q

To whom must an application for a freezing injunction be made?

A

A High Court judge

39
Q

What are the three requirements of which a court must be satisfied before granting a freezing injunction?

A
  1. Strong case on the merits
  2. Defendant has assets within the jurisdiction
  3. Real risk the defendant may dispose of or dissipate those assets before judgment can be enforced
40
Q

What two things must be true of a freezing injunction?

A
  1. The assets frozen should not exceed the maximum amount of the claim, and
  2. The order must state the period of time it will be in effect
41
Q

When will a freezing injunction bind third parties?

A

When they have knowledge of it

42
Q

What must a defendant offer in order to apply for discharge of a freezing injunction?

A

Security for the value of the claim

43
Q

What is a search order?

A

A last resort order applied for without notice by the applicant if it is clear the defendant will not obey the rules relating to disclosure, or may seek to destroy evidence, which allows the claimant to search for and potentially seize this evidence

44
Q

What are the three requirements of which a court must be satisfied before granting a search order?

A
  1. Strong case on the merits of the underlying claim
  2. Defendant’s activities cause very serious potential or actual harm to the claimant’s interest, and
  3. Clear evidence that the property and documents are in the defendant’s possession and there is a real possibility the material may be destroyed
45
Q

What three things will the independent supervising solicitor who oversees execution of a search order undertake to do?

A
  1. Offer to explain the meaning and effect of the order to the defendant
  2. Inform the defendant of their right to seek legal advice and right to apply to vary or discharge the order, and
  3. Prepare a written report on execution and provide it to the claimant’s solicitor and the court
46
Q

In the context of a search order, what three things will the claimant’s solicitor undertake to do?

A
  1. Return original documents to the defendant within two days
  2. Deliver property in dispute to defendant’s solicitors, and
  3. Retain all other property securely until the court directs otherwise

Dispute Resolution (18 decks)

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